Usman Khan and Others v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Mr Justice Mitting,Mr Justice Sweeney |
| Judgment Date | 16 April 2013 |
| Neutral Citation | [2013] EWCA Crim 468 |
| Docket Number | Case No: 201201301A2, 201201447A2, |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 April 2013 |
[2013] EWCA Crim 468
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
The Hon Mr Justice Wilkie
T20117593
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leveson
Mr Justice Mitting
and
Mr Justice Sweeney
Case No: 201201301A2, 201201447A2,
201201451A2, 201201453A2, 201201445A2
Joel Bennathan Q.C. for Usman Khan
Brian O'Neill Q.C. for the Mohibur Rahman
James Wood Q.C. and Hossein Zahir for Omar Sharif Latif
Andrew Hall Q.C. and Frida Hussain for Abdul Bosher Mohammed Shahjahan
Jim Sturman Q.C. for Nazam Hussain (all instructed by the Registrar of Criminal Appeals
Alison Morgan (instructed by the Crown Prosecution Service) for the Crown
Hearing date: 22 March 2013
On 31 st January 2012, at the Crown Court at Woolwich before Mr Justice Wilkie, Usman Khan (then nearly 21 years of age), Abdul Bosher Mohammed Shahjahan (one month short of 28) and Nazam Hussain (26) pleaded guilty to engaging in conduct in preparation for acts of terrorism contrary to s. 5(1) of the Terrorism Act 2006 (Count 9); Omar Sharif Latif (28 years of age) pleaded guilty to a similar offence (Count 12); and Mohibur Rahman (27) pleaded guilty to being in possession of articles for a terrorist purpose contrary to s. 57 of the 2006 Act (Count 11). On the 9 th February 2012, Khan was sentenced to detention for public protection with a minimum custodial term of 8 years; Rahman was sentenced 5 years imprisonment; Latif was sentenced to an extended sentence of 15 years 4 months with a custodial term of 10 years imprisonment and an extension period of 5 years. Shahjahan and Hussain were both sentenced to imprisonment for public protection with minimum custodial terms of 8 years 10 months for Shahjahan and 8 years for Hussain. In each case, the time spent on remand was ordered to count towards the sentence and all were subject to terrorist notification periods imposed pursuant to the provisions of Part 4 of the Counter Terrorism Act 2008 of 30 years (save for Rahman whose period was 15 years). With the leave of the single judge, each appeals against sentence.
In order to understand the background and part of the basis for these appeals, it is also necessary to record that Mohammed Chowdhury (aged 21), Shah Mohammed Lutfar Rahman (29), Gurukanth Desai (30) and Abdul Malik Miah (25) were charged in the same indictment. They each pleaded guilty to engaging in conduct in preparation for acts of terrorism (Count 10) and were each sentenced to extended sentences of 18 1/2 years, 17 years, 17 years and 21 years 10 months respectively, the custodial terms being 13 1/2 years, 12 years, 12 years and 16 years 10 months, in all cases with an extension period of 5 years. Again, time spent on remand was ordered to count towards the sentence and all were subject to terrorist notification periods of 30 years.
For the purposes of this appeal and the grounds advanced, the facts alleged by the prosecution and the contentions of the appellants require analysis along with a detailed account of the circumstances in which the guilty pleas came to be tendered. By way of introduction, at the time of the offences concerned, the appellants Khan, Shahjahan, Mohibur Rahman and Hussain were each born in the UK although of Pakistani and Bangladeshi origin and lived in Stoke; they are referred to as the Stoke defendants. Latif, born in London, lived in Cardiff as did his co-accused Desai and Miah (the latter two are brothers, Miah having been born in London): they are Bangladeshi in origin and referred to as the Cardiff defendants. Chowdhury and Shah Rahman who are not appellants were also Bangladeshi in origin and lived in London: the London defendants. At some time, the accused each became a committed Islamic fundamentalist, believing in jihad, that is to say, they wished to support and commit acts of terrorism in furtherance of their religious beliefs. They came to the attention of the security services who monitored them using covert surveillance techniques and devices and were able to effect their arrest prior to advanced steps having been taken to implement their plans.
Although from different parts of the country, the three groups met together. Also by way of overview, on the 7 November 2010, they were recorded meeting in a Cardiff park. Although limited material was available as to precisely what transpired, the meeting was alleged to have covered ideological discussion and general ambitions concerning terrorist activity. On the 28 November 2010, the defendants from Cardiff and London met, this time in London, where discussions for targets for attack and methodology took place. On the 28, 29 November and 10 December, the brothers Desai and Miah were recorded discussing the construction of explosive devices. On the 12 and 14 December, the Stoke defendants were recorded discussing jihad overseas. Also on the 12, the three groups met in a Welsh country park where discussion was said to include how to advance plans for an attack. On the 14 December, the Stoke defendants were monitored discussing locations in Stoke that may be targeted. On the 15 December, Khan was monitored in conversation about how to construct a pipe bomb from a recipe referred to in the Al-Quaeda publication "Inspire 1". Finally, on the 19 December, the London defendants were engaged in experimentation using the pipe bomb recipe. It was this development that, on 20 December 2010, prompted the arrest of the group.
The result was that all nine men faced an indictment the principal counts of which were a joint charge of engaging in conduct in preparation for acts of terrorism and conspiracy to cause an explosion likely to endanger life or cause serious injury to property in the UK. There were substantial pre-trial hearings before Wilkie J in September and December 2011 (described by Mr Andrew Edis Q.C., who led Ms Morgan at the trial and prepared a detailed skeleton argument for this court, as a "long and abrasive disclosure battle") with the notional trial date being fixed for 16 January 2012. In the event, the trial did not then commence; there was further pre-trial argument and negotiation and a jury was not sworn until 24 January.
Discussions between the Crown and the appellants then continued as the impact of further disclosed evidence was appreciated. One of the issues related to a separation of the allegations against the Stoke defendants and the London defendants based upon their different activities, intentions and aspirations. During the course of those discussions, the London defendants, by their counsel, sought a Goodyear indication as to sentence. On 31 January, Wilkie J acceded to the request and provided such an indication (which did not involve an indeterminate term). Thereafter, all the defendants (including those who had not sought an indication of sentence) pleaded guilty to specific offences which identified their involvement as opposed to involvement in the activities of others discussed in the joint meetings.
The defendants provided bases of plea which were not challenged by the Crown it being accepted that the facts (not inconsistent with the bases of plea) would be opened in full. Those who had not received Goodyear indications (i.e. all but the London defendants) used the facts which formed the basis of the offence to which those defendants pleaded guilty as providing a template or fixed tariff against which to make submissions as to the sentences which should be imposed on them on the grounds that their criminality was less culpable. In the event, Wilkie J took the opposite view and imposed indeterminate sentences on the three Stoke defendants; he also imposed lengthier determinate terms on the two others (not being the London defendants) than was submitted could be justified or extrapolated from the Goodyear indications.
In the circumstances, this judgment will deal with the case under the headings of the underlying facts; the Goodyear indication; the general bases of plea; the opening; the approach of the judge; the assessment of dangerousness and the indeterminate terms; and the appropriate determinate terms, dealing first with Khan, Shahjahan and Hussein, then Latif and, finally Mohibur Rahman.
The Facts
Although it is not said that any of the appellants belonged directly to Al Qaeda (AQ), it was alleged that they were inspired by that ideology which encouraged them to carry out acts of terrorism. This radicalisation was through the internet, inspired by the ideology and methodology of Anwar Al Awlaki (the now deceased Yemini based extremist) and the AQ magazine "Inspire" which he wrote, copies of which were found on computer equipment seized from the homes associated with many of the defendants. This magazine was repeatedly referred to as a source of inspiration and guidance in relation to the construction of an improvised explosive device, in the form of a pipe bomb. Of particular significance was the rejection of the "Covenant of Security" which generally protects countries where Muslims live but was said not to apply in Britain because the British had broken it. A communication to this effect was sent by Chowdhury to Rahman, Shahjahan and Rahman on 22 and 23 November: it is only of interest to jihadis who are deciding whether to attack the country in which they live. A considerable body of extremist ideological material (with lectures by Anwar Al Awlaki) were found in the possession of the men when they were arrested.
On 7 November 2010, the men,...
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